Citation Nr: 1309209
Decision Date: 03/19/13 Archive Date: 04/01/13
DOCKET NO. 09-48 476 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for amputation of the right great toe.
2. Entitlement to service connection for neuropathy.
3. Entitlement to an increased rating for degenerative disc disease of the lumbar spine with radiculopathy, rated 10 percent.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
The Veteran and D.B.
ATTORNEY FOR THE BOARD
D. Johnson, Counsel
INTRODUCTION
The Veteran served on active duty from October 1962 to October 1966.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2011. A transcript of the hearing is in the Veteran's file.
FINDING OF FACT
According to the records of the Social Security Administration, the Veteran died in November 2012 while his appeal was pending before the Board.
CONCLUSIONS OF LAW
1. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate entitlement to service connection for amputation of the right great toe. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).
2. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate entitlement to service connection for neuropathy. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).
3. Due to the death of the Veteran, the Board has no jurisdiction to adjudicate entitlement to an increased rating for degenerative disc disease of the lumbar spine with radiculopathy, currently rated as 10 percent disabling. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2012); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted as proof of death. 38 C.F.R. § 3.211(g).
According to the records of the Social Security Administration, a Federal agency, the Veteran died in November 2012, while his appeal was pending and before the Board promulgated a decision on the appeal.
In the absence of evidence to the contrary, the Board accepts the finding by the Social Security Administration as proof of the Veteran's death during the pendency of the appeal and before the Board promulgated a final decision.
As the Veteran died during the pendency of the appeal, as a matter of law, the appeal does not survive the Veteran's death, and the appeal must be dismissed for lack of jurisdiction. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1302 (2012); Landicho v. Brown, 7 Vet. App. 42, 53- 54 (1994).
The Board's dismissal of the appeal does not affect the right of an eligible person to file the request to be substituted as the appellant for purposes of processing the claim to completion. Such request must be filed not later than one year after the date of the Veteran's death. See Veterans Benefits Improvements Act of 2008, Pub. L. No.110- 3889, § 212, 112 Stat. 4145, 4151 (2009) (creating new 38 U.S.C.A. § 5121A, substitution in case of death of a claimant who dies on or as of October 10, 2008).
As provided for in this new provision, a person eligible for substitution will include a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a).
The Secretary of VA will be issuing regulations governing the rules and procedures for substitution upon death. Until such regulations are issued, an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the Veteran should file a request for substitution with the VA regional office from which the claim originated (listed on the first page of this decision).
ORDER
The appeal of the claim of entitlement to service connection for amputation of the right great toe is dismissed.
The appeal of the claim of entitlement to service connection for neuropathy is dismissed.
The appeal of the claim of entitlement to an increased rating for degenerative disc disease of the lumbar spine with radiculopathy, currently rated as 10 percent disabling is dismissed.
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George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs